CONSTITUENT ASSEMBLY OF INDIA - VOLUME VII

Thursday, the 2nd December 1948

Sir, I do not say that this article is perfectlyworded; nor can I maintain
that the exceptions to parts ofthis article provided by clauses (2), (3), (4),
(5) and (6)do not curtail the liberty and the right conceded toindividual
citizens in clause (1). But, as a student ofpolitics, I have to realise that
there can be no absoluteright and every right has got to be abridged in some
manneror other under certain circumstances, as it is possible thatno right
could be used absolutely and to the fullest extentthat the words conveying
that right indicate. It is merely amatter of compromise between two extreme
views. Having gotour freedom only recently, it is possible that we want allthe
rights that are possible for the individual to exercise,unfettered. That is
one point of view. The other view isthat having got our freedom, the State
that has been broughtinto existence is an infant State which has to pass
throughvarious kinds of travail, and what we could do to ensurethat the State
continues to function un-impaired should beassured even if it entails an
abridgment of the rightsconferred by this article. I have no doubt in my mind
that,though I have had to say something perhaps harsh on certainoccasions in
regard to what the Drafting Committee has donegenerally, in this article, the
Drafting Committee haschosen the golden mean of providing a proper enumeration
ofthose rights that are considered essential for theindividual, and at the
same time, putting such checks onthem as will ensure that the State and the
Constitutionwhich we are trying to bring into being today will
continueunhampered and flourish.

Sir, language is always rather a difficult affair. Whatlanguage conveys to me
it may not convey to another person,and as my honourable Friend Dr. Ambedkar
put it, we arelegislating in a language which is foreign to us, the
exactimport of which we do not understand. Should we do it in oneof our own
languages? The difficulty would be all thegreater for the reason that the
language of one set ofpeople is not the language of another set of
people.Besides, precise thinking in our own language so that wecould adopt it
for constitutional purposes has not yetdeveloped. Actually we have to depend
for the interpretationof the particular restrictions that are enumerated
herein onthe Supreme Court or some other author ity that would comeinto being
in the future, to ensure that the peoples' rightsare not abridged.

Speaking today in the context of the situation in which we are placed, we
cannot but envisage that those rights willbe abridged in order to maintain the
stability of the State.This State that has now been brought into being has
been putto a lot of travail in the first eighteen months of itsexistence and
every Member of this House knows it. Specialpowers are needed by the
Government to meet not merely with the refugee problem, not merely with the
fact that there arevarious forces in this country which do not like this
Stateto grow in the present form, but also with the variouseconomic troubles
that now face this country. Are we tobuild up our Constitution, putting in
these restrictionswhich are necessary today in the light of things that
standas they stand today, or are we to visualise a time whenthings will be
normal and when it will not be necessary for the State to use these powers, is
the problem. Again, I think, the Drafting Committee and my honourable Friend
Dr.Ambedkar have chosen the golden mean in this particularmatter.

There is one other matter on which I would like to lay stress before I sit
down. We in this House, though the bulkof us belong to one party, have got
different ideas on economic matters. We were all together inone particular
fact that the Brit ish should go; we are allunited in the desire that we
should have a stableconstitution which will ensure to the common man what
heneeds most, what he did not obtain in the former regime.But, in the
achievement of that goal in the methodology to be adopted for the achievement
of that

goal our ideas varyconsiderably, and vary from one end to the other. I am
happyto see that the Drafting Committee has chosen to avoidimporting into this
particular article the economicimplications in the enumeration of fundamental
rights thatobtain in other constitutions. I think it has been a verywise
thing. I know a friend of mine in this House hasobjected to one particular
sub-clause (f) of article 13,namely, to acquire, hold and dispose of property.
I wouldlike to assure him and those who hold the opinion that heholds that
this does not really mean that there is any particular right in regard to
private property as such, nomore than what any person even in absolutely
socialisticregime will desire, that what he possesses, what areabsolutely
necessary for his life, the house in which helives, the movables that he has
to possess, the things whichhe has to buy, should be secured to him, which I
think anysocialistic regime, unless it be communistic, will concede,is a right
that is due to an individual.

Actually the economic significance that attaches to anyenumeration of
Fundamental Rights, such as the rightsconceded in the Bill of Itights in the
American Constitutionand the addition to these in the Fourteenth Amendment,
findsno place so far as this particular Constitution isconcerned, and I am
able to say that that is one of the bullfeatures of this Draft Constitution.
We have chosen to avoidas far as possible, in spite of the fact that the
vestedinterests are still with us and they have a certain amountof
influence--we have chosen to avoid as far as possiblelaying that stress on the
importance of the economicsurroundings which is a significant feature of the
AmericanConstitution, and I do hope that my honourable Friend, whoobjected to
a particular sub-clause in this article namelyclause (f), will now realise
that it has no meaning so faras property rights are concerned except in
something that isdear to an individual and which is very necessary to
concedein an enumeration of rights of this nature.

Sir, the future, what it is going to be none of usreally know, but we allmost
of us--envisage that the futurewill be one which will be bright, the future
will be onewhere the State is going to be progressive, where the Stateis going
to interfere more and more in the economic life of the people not for the
purpose of abridgment of rights ofindividuals, but for the purpose of
bettering the lot ofindividuals. That is the State that I envisage, a
Statewhich will not be inactive, but will be active and interferefor the
purpose of bettering the lot of the individual in this country; and I do feel,
Sir, that as it is a well knowncanon that in any Constitution that is forged
there shouldbe a reconciliation of past political thought which will atonce
pave the way for a new level of thinking, a new levelof progressive and
critical thinking. I think thoseconditions are at any rate possible in an
enumeration of theRights such as is found in article 13. Sir, there is no
useour comparing this particular article which happens to bethe crux of the
Fundamental Rights with either what obtainsin the commentaries of the English
Constitution or whatobtains in the text of the American Constitution or
anyother Constitution, for the reason that the setting istotally different.
There is no use anybody saying that aparticular feature is not found in the
English Constitution.English jurisprudence is something totally different for
thereason that English Parliament does not provide for theenumeration of all
these rights which is absolutely based oncustom on which you cannot depend for
ever becauseParliament there is supreme and can make laws contravening every
recognised custom.They do not have to have a Constitutional amendment for
thatpurpose. Parliament can fomnuiate new laws which might cutright across the
conventions, and the usages of the Constitution established over centuries.
But so far as theAmerican example is concerned--and certainly there are
otherexamples which are modelled on the American example--thereis one
distinction between our

own way of thinking and whatthe Founding Fathers in America thought and what
wassustained in America until recently, viz., the economicbasis of the
American Constitution is something totallydifferent from what we envisage to
be the economic basis of our Constitution. So any analogy is only applicable
up to apoint, and therefore any of our friends who seek to importparticular
provisions of the American Constitution orparticular words either in this
particular article or inlater articles, have to recognize that the bulk of
theopinion of this House is something totally different fromthe economic bias
that more or less determined the AmericanConstitution, right at the inception
and later on as well,on which bias legal literature has built up
severalconventions attached to that Constitution.

Sir, I would like to say this that the amendmentsproposed by my honourable
Friend Dr. Ambedkar particularlyto clauses (4), (5) and (6) are a great
improvement on theoriginal draft and my own view is that they do take away
thelacunae that existed in the original draft. But I shouldlike to lay
emphasis on one particular amendment moved by myFriend Mr. Munshi who is not
here. The value of thatamendment happens to be only, to a very large
extent,sentimental. The word `sedition' does not appear therein.Sir, in this
country we resent even the mention of the word`sedition' because all through
the long period of ourpolitical agitation that word `sedition' has been
usedagainst our leaders, and in the abhorrence of that word weare not by any
means unique. Students of Constitutional lawwould recollect that there was a
provision in the AmericanStatute Book towards the end of the 18th Century
providingfor a particules law to deal with sedition which wasintended only for
a period of years and became more or lessdefunct in 1802. That kind of
abhorrence to this word seemsto have been more or less universal even from
people who didnot have to suffer as much from the import and content of that
word as we did. Just all the same the amendment of myhonourable Friend Mr.
Munshi ensures a very necessary thingso far as this State is concerned. It is
quite possible thatten years hence the necessity for providing in
theFundamental Rights an exclusion of absolute power in thematter of freedom
of speech and probably freedom toassemble, will not be necessary. But in the
present state of our country I think it is very necessary that there shouldbe
some express prohibition of application of these rightsto their logical end.
The State here as it means in the amendment moved by my honourable Friend Mr.
Munshi as Iunderstand it, means the Constitution and I think it is
verynecessary that when we are enacting a Constitution which inour opinion is
a compromise between two possible extremeviews and is one suited to the genius
of our people, we musttake all precautions possible for the maintenance
andsustenance of that Constitution and therefore I think the amendment moved
by my honourable Friend Mr. Munshi is ahappy mean and one that is capaable of
such interpretationin times of necessity, should such time unfortunately
comeinto being so as to provide the State adequate protectionagainst the
forces of disorder.

Sir, one other matter which I would like to mentionbefore I sit down is this.
Sub-clause (c) of art. 13 (1) isvery important. I do not know if people really
realise asthey would know in other countries and particularly in U.S.,labour
has had to undergo an enormous amount of trouble toobtain elementary rights on
matters of the recognition of their rights, in the matter of the right to
assemble together as a Union. I do not think that in my view clause (4) of
this particular articleunnecessarily abridges the rights conferred by
sub-clause(c) of clause (1). My own feeling is that we have more orless sought
to cut across the difficulties which the othercountries have faced in this
particular matter and we haveensured for labour the very legitimate right to
come together, to agitate and to obtain for themselves and for the members of
their Union the rights that are

justlytheirs. That I think is more or less a charter for workersin this
country and I am happy to see that the vestedinterests have not tried in any
way to abridge thisparticular right. On the whole, Sir, this particular
articlewith the amendments proposed by my honourable Friend Mr.Munshi and the
three amendments proposed for clauses (4),(5) and (6) by Dr. Ambedkar and also
the addition of theword `reasonable' which has been brought in by my
honourableFriend Mr. Thakur Dass Bhargava, represents in my opinion afairly
reasonable enumeration of our rights and a fairlyconservative abridgment of
those rights. The working of these particular rights depends upon the genius
of ourpeople, upon how we develop ideas of liberty which are stilltoday in a
very undeveloped state. It is no doubt true thatour leaders are sometimes
hasty, they want more powers, whenthey are faced with difficult situations and
they think theonly way in which they could deal with them is to have
morepowers. They do not recognize that they are leaders of thepeople the
chosen leaders of this country each one with apersonality of his own and the
aggregate effect of theirpersonality and their influence can cut right across
thenecessity for any drastic powers. That kind of confidencewill come only
later on--at the moment they merely want tofollow in the footsteps of people
who preceded us in thegovernment of this country, who had no touch or contact
with the people, who could never get on to a platform andpersuade the people
to do any particular thing, who onlywanted powers which could be exercised
through the medium of the bureaucracy. That mentality will change, and will
surelychange, because our leaders are very eminent people. Surely,the House
will realise that the Prime Minister and theDeputy Prime Minister, if they get
upon a platform can swaymillions of people if they could only get their voices
toreach them. It only depends upon the type of leaders that weget for the
abridgment of these rights which are enumeratedhere to become a dead letter,
and that is in the lap of thegods. For the time being we have done the very
best possiblewhich human ingenuity can devise.

Sir, I support the article before us.

Shri Lakshmi Narayan Sahu (Orissa: General): *[Mr. VicePresident, I would like
to make an observation with regardto article 13 which is now under discussion.
The articleconfers certain rights on the citizens, but the words`subject to
the other provisions of this article' occurringin the very beginning of the
article, serve as a warning tous that the article confers freedom, no doubt,
but that it is only within a limited sphere. Moreover the sub-clauses(2), (3),
(4), (5) and (6) that follow, re-emphasise thatunless the freedom granted is
enjoyed within the prescribedlimits, people would get into great difficulty. I
feel,however, that both the words `subject to other provisions ofthis article'
and the sub-clauses (2), (3), (4), (5) and (6)should be deleted from the
article. We shall be able tovisualize the true picture of our freedom only
when this hasbeen done. So long as the sub-clauses remain, we can nothave a
correct picture of our freedom. Moreover I feel thatliberty has been
considerably narrowed during the draftingprocess. It is just like the
narrowing of the size of atemple as a consequence of its main entrance being
made toolarge during the process of constructing the temple. It isof no

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[] Translation of Hindustani speech.

use whatever. There is an Oriya proverb which is meant for such a situation.
It is-

Ghare na pasuna chal vaguchi Devalku Mukhashala Bil Gala.

It means that it is no use making a house with so small anentrance that one's
entry into the house is rendereddifficult without striking his head against
the door-frame.Though there has been considerable discussion on thearticle, we
wish that we discuss it more thoroughly and thatthe Drafting Committee gives
more consideration to it. Thus,whatever drawback we find in the article should
be removed.In my opinion sub-clauses (2), (3), (4),

(5) and (6), mustbe deleted. Unless this is done we shall not have the tasteof
freedom and shall continue to remain in a condition offear. Those who till
recently were seeking to organisedisobedience of laws are, being today, in the
seat of power,apprehensive of the violation of laws by other people, andunder
this apprehension, are seeking to make the law socomprehensive and rigid as to
prevent any one outside theruling group from going beyond its control. I would
like tosay that article 13 which is now under discussion betrays
anununderstandable apprehension on the part of author ity. Thefact is that
there are many provisions in this Draft Constitution which would prevent the
citizens fromcommitting any disorder. Thus article 25 provides that
"Theright to move Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this part isguaranteed". I submit,
therefore, that all the restrictiveprovisions contained in article 13 should
be deleted. Mybelief is that article 25 will be as helpful to thegovernment as
to good citizens. Unless the restrictiveprovisions of this article are
deleted, we cannot properlyenjoy our National Freedom. Moreover it had always
been ourloud assertion that self-government is better than goodgovernment. Now
we have grown indifferent to self-governmentand are rais ing the slogan of
good government. With so manyrigid provisions what good government can you
have and forwhom?

Those who are in power at present are apprehensive thatthe people and
political parties other than those of theruling group would practise
disobedience of laws. That iswhy so many restrictive provisos have been
included in theDraft Constitution. It is precisely why I insist that
theFundamental Rights should be treated as fundamental andinviolable. It is
not proper therefore to delimit them by somany restrictive clauses and
sub-clauses.

There is one observation I would like to make about theAdibasis. I agree to a
certain extent with what Shri JaipalSingh has said. Adibasis move about with
arms. This articlelays down that all citizens shall have the right
"toassemble peaceably and without arms". We should thereforeconsider
whether or not this clause takes away from theAdibasis their customary right
to bear arms. In view of theprovisions contained elsewhere in the
constitution. I think,this will not affect the right of Adibasis to bear arms.
Ifthis view be correct Adibasis need not fear the loss of their right. Though
I have no objection to the words"assemble peaceably and without
arms" being put in here, yetI feel that nowhere in the Draft Constitution
can be foundany provision regarding the repeal of the Arms Act and thegrant of
the right to the people to bear arms--a right whichis essential to make our
people fearless. Therefore, I wouldlike that a provision for the repeal of the
Arms Act andmaking it permissible to the people to bear arms be includedin the
Draft. I would not like to say anything more about this matter.

We often talk of minor ities today but we should stopthis kind of talk now.
What is a minor ity? When we are goingto make one and the same provision for
all, I fail to seewho remains to constitute the minor ity. It may be
saidagainst this view that the Depressed Classes are a minor ity,the
aboriginals are in a minor ity and the Muslims are in aminor ity. But once it
is conceded that a particular group isa minor ity there is the danger that
many other groups wouldbegin to clamour for being considered as minor
ities.Formerly in the political sphere the Muslims were considereda minor ity.
But then the Depressed Classes got themselvesincluded in this category. I am
afraid that among theDepressed Classes themselves new groups would
begindemanding the status of a new minor ity. The same is, in myopinion, the
case of the aboriginals. I would, therefore,like that the word `minor ity'
wherever it occurs in theDraft Constitution should be deleted and the article
13should be so drafted that all may feel that they have gotreal Swaraj and
that they have no cause for apprehension andthat

they have as unrestricted a freedom as any one else.

Shri Deshbandhu Gupta (Delhi): *[Mr. Vice-President, Ihave had an opportunity
once before of representing my viewson the recommendations of the Drafting
Committee. I was notat that time in a position to congratulate my Friend,
Dr.Ambedkar and the Drafting Committee, on certain of therecommendations,
which related to the Chief Commissioners'Provinces. But today. I feel that on
article 13, whichrelates to our Fundamental Rights, and particularly afterthis
amendment as it stands, the Drafting Committee deservesour hearty
congratulations.

Some of my friends here have objected saying that whathas been given by one
hand has been taken away by the other.But if you ponder a little, you will
find that it is not so.If some one is given a freedom by which the freedom of
theother is curtailed, then I would say, that such a demand is not for the
right type of freedom. For example, it has beenstated that restrictions have
been imposed on the movementof people belonging to the criminal tribes. I
would like toask, why should not restrictions be imposed on the movementof the
criminal-tribe people, when they are a source ofdanger to other law-abiding
citizens? Could anyone beserious in saying that restrictions and conditions
imposedon the criminal tribes should not have been imposed at all?Or that the
presence of those restrictions and conditionshas in any way curtailed our
freedom? Similarly in respectof land, it has been stated that henceforth our
Harijanbrethren would not be able to purchase any land for themselves and the
Land Alienation Act would continue tostand as it is. It is perfectly correct
to say that the mostobjectionable feature of the Land Alienation Act was
thatcertain castes had been mentioned therein. For example, aBania or a
Brahmin or a Harijan could not purchase land. Itwas wrong. But in fact, that
restriction is being sweptaside today by the conferment of the Fundamental
Right thatall citizens shall have the right to acquire property. Fromnow on,
if any restriction is imposed, it would have to beproved whether it is proper
or improper. That question wouldbe decided, under the provisions of this
section, by the Supreme Court. It is a big gain. Formerly, the phraseologyof
the article was defective, but that defect has beenremoved by the acceptance
of the amendment of my Friend,Pandit Thakur Dass Bhargava, which seeks to add
the word`reasonable'. Now, there is nothing to warrant theimposition of any
undue restriction. If there would be any,then against that an appeal could be
preferred, and thatwould be decided by our Supreme Court which would
becomposed of great experts in India. That is why I feel thatwe should welcome
this article and that it would be wrong togive an impression that it curtails
our freedom in anysense. We should realise that our country is now a
freecountry. I agree with my Friend, Shri Algu Rai Shastri that,along with
rights, certain obligations and responsibilitieshave also come upon

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[] Translation of Hindustani speech.

us. If we do not stand by those obligations then our freedomwould be the
freedom of the jungle. That freedom, I think,would not be such as to merit a
welcome from us. Therefore,I think, this article as amended, should be
accepted by us.We should realise that it forms the basis of ourconstitution,
and it is a thing of which we can rightly feelproud and which will raise us in
the estimation of the whole world.]

Shri M. Ananthasayanam Ayyangar (Madras: General): Sir,I consider article 13
as the most important article, as itdeals with some of the fundamental rights
which are commonto all free countries and all free citizens in the world.
Anumber of amendments have been moved to this article whichcan all be
classified under three heads. Some want to removeall restrictions on the
rights that have been set out inclause (1). The fundamental rights guaranteed
in clause (1)of article 13 are freedom of speech and expression, assemblyand
association, right to move freely inside the territory,right to

practise any profession, right to reside--these arethe fundamental rights that
have been guaranteed. There areexceptions to these fundamental rights that
have been setout in this clause and they are to be found in thesubsequent
clauses (2), (3), (4), (5) and (6). Some of the amendments are for the
deletion of the clauses; and some tomake improvements so that these provisos
may not take awaythe rights that have been guaranteed under clause (1).

Pandit Thakur Dass Bhargava has moved an amendmentsaying that if any
restrictions have to be imposed uponthese rights that have been guaranteed in
clause (1), theymust all be reasonable. I believe that that amendment
wouldsufficiently meet the situation.

Regarding freedom of speech we have improved upon therestriction that has been
imposed in clause (2). The word`sedition' has been removed. If we find that
the governmentfor the time being has a knack of entrenching itself,however had
its administration might be it must be thefundamental right of every citizen
in the country tooverthrow that government without violence, by persuadingthe
people, by exposing its faults in the administration,its method of working and
so on. The word `sedition' hasbecome obnoxious in the previous regime. We had
thereforeapproved of the amendment that the word `sedition' ought to be
removed, except in cases where the entire state itself issought to be
overthrown or undermined by force or otherwise,leading to public disorder; but
any attack on the governmentitself ought not to be made an offence under the
law. Wehave gained that freedom and we have ensured that nogovernment could
possibly entrench itself, unless thespeeches lead to an overthrow of the State
altogether.

Then there are certain amendments which have been givenfor adding to the
fundamental rights that have been set out.They require some detailed
consideration. The foremost ofthose amendments relates to guaranteeing that
every citizenshall have the right to exercise his personal law. Let ussee what
this means. We have already discussed personal lawat some length in the
Directive clause where a direction hasbeen given that a uniform code of civil
law must be evolvedearly or late. Amendments have been moved that unless
aprovision is made in the Fundamental Rights there is nosafety and that the
major ity community may introduce its ownpersonal law or flagrantly violate
the personal law of any community. Let us take the communities. There are
three mainreligions. Let us take Muhammadanism. There is absolutely
noprovision in the Fundamental Rights that you ought to riderough-shod over
their personal law. The law of the land asit exists today gives sufficient
guarantee so far as that isconcerned. But our friends who moved the amendments
wanted adouble guarantee that their personal law ought not to beinterfered
with. My submission is that it is impracticable,for, in an advanced society,
even the members who belong to a particular community may desire their
personal law to be changed. Let us take the Muhammadan law. I would onlyrefer
to two or three amendments that have been made to thatlaw as set out in the
Shariat. As recently as in 1939 theCentral Legislature passed a law for
enabling thedissolution of Muslim marriages under certain circumstances.You
will be pleased to note that under the Muslim Law, a manhas got the unilateral
right to declare a marriage void bypronouncing the word talak and there is
another form ofdivorce called kulamp. Woman normally has no right todissolve a
marriage. She has to go to a court of law andvarious matters have to be set
out such as impotency and soon. All that has been made easy now. Another
considerationis that a woman who cannot lead a family life with thehusband in
the same household is entitled under certainconditions to separation. These
have hitherto not beenenvisaged nor provided for in the Dissolution of
MuslimMarriages Act. As a member of the Assembly I was a member ofone of the
committees that considered this question. We leftthe question entirely for the
Muslims Members concerned tosettle. The

Shariat Law was introduced in the Assembly andan Act was passed bringing into
line with the Shariat Lawthe different pieces of legislation in the provinces
ofIndia. This was done four years ago. The Wakf Validation Actwas passed in
1930. A time may come when members belongingto the particular community may
feel that in the interestsof the community progressive legislation has to be
enacted.But if we make a provision here that the personal law shallnot be
interfered with, there will not be any right to themembers of that community
itself to modify that law.Therefore it is not necessary that we should
introduce it asa fundamental right. There is absolutely nothing in
thisConstitution which allows the major ity to override the minor ity. This is
only an enabling provision. Without theconsent of the minor ity that is
affected, no such law willbe framed. I therefore feel it is unnecessary to
include itin the Fundamental Rights.

Then my friend, Mr. Kamath wanted that we should havethe right to bear arms
and that this right should be put in the Fundamental Rights. It is true that
for a long time theCongress has been from year to year passing resolutions
thatwe must have the right to bear arms. The situation haschanged now. We were
then slaves and wanted to equipourselves sufficiently so that in case of need
we can usethe arms for getting out of the foreign yoke. But, today in the
civilised world I should like to ask my honourableFriend if he feels that
everybody should be allowed to fighteven to defend himself. Except in extreme
circumstances noforce should be used. Even when force has to be used, itmust
be concentrated in the State. The State it is that muststand between man and
man and citizen and citizen when theywant to fight. No individual citizen
ought to be allowed toattack another. Very often the right to bear arms is
abused.

Shri H. V. Kamath: Not even in self-defence?

Shri M. Ananthasayanam Ayyangar: Very often defence isoffence in the hands of
strong young men whose blood is verywarm like that of my friend. Mr. Kamath's
defence very oftenmeans offence.

Shri H. V. Kamath: I strongly protest against thatremark, Sir.

Shri M. Ananthasayanam Ayyangar: I am sorry, Sir.

Mr. Vice-President: He has expressed his regret.

Shri M. Ananthasayanam Ayyangar: I have the greatestregard for my young friend
and his youthful enthusiasm.

So far as the communal point is concerned, there is anamendment here which
requires it to be included as a fundamental right. I am afraid it is

not possible to do so. There is provision made in the PenalCode under sections
153 and 155-A for the purpose. That is ample.

As regards freedom of thought, I am surprised to see anamendment moved saying
that freedom of thought ought to beallowed. Nobody can prevent freedom of
thought. It is a fundamental right. It is only freedom of expression that
hasto be allowed. Now, freedom of press means freedom ofexpression. As regards
the secrecy of telegraphic andtelephonic communications, it is a debatable
point and weought not to allow any change in the existing provision.

Now, therefore, except the amendments which areacceptable to Dr. Ambedkar, the
others should not beaccepted. They are objectionable and ought not to find
aplace in the Constitution.

Mr. Vice-President: An enquiry was made of me as to howI have tried to conduct
the proceedings of this House. Irefused to supply the information at that
time, because Ithought it might be left to my discretion to explain how
Iconduct the proceedings. I see that I have not been able tosatisfy all the
members who desire to speak. At the presentmoment I have here 25 notes from 25
different gentlemen allanxious to speak. There is no doubt that each one of
themwill be able to contribute something to the discussion. Butthe discussion
cannot be prolonged indefinitely. This doesnot take into account those other
gentlemen equallycompetent to give their opinion who stand up and who
havedenied to themselves the

opportunity of sending me notes. Ihave tried to get the views of the House as
a whole. IfHonourable Members will kindly go through the list ofspeakers who
have already addressed the House they will findthat every province has been
represented and every so-calledminor ity from every province has been
represented. In myview, in spite of what Pandit L. K. Maitra says,
Bengaloesare a major ity. In my view therefore the question has beenfully
discussed. But, as always, I would like to knowwhether it is the wish of the
House that we should closethis discussion.

Honourable Members: Yes, yes:

Mr. Vice-President: Then I call upon Dr. Ambedkar toreply.

The Honourable Dr. B. R. Ambedkar (Bombay: General):Mr. Vice-President, Sir,
among the many amendments that havebeen moved to this article 13, I propose to
accept amendmentNo. 415, No. 453 as amended by amendment No. 86 of Mr.Munshi,
and amendment No. 49 in list I as modified by Mr.Thakur Dass Bhargava's
amendment to add the word`reasonable'.

Mr. Vice-President: Will you kindly tell us how youpropose to accept amendment
No. 415.

The Honourable Dr. B. R. Ambedkar: The amendment whichseeks to remove the
words `subject to the other provisionsof this article'.

Mr. Vice-President: And then?

The Honourable Dr. B. R. Ambedkar: Then I accept No.453 as modified by
amendment No. 86, and amendment No. 49 inList I as modified by the amendment
of Pandit Thakur DassBhargava which introduces the word `reasonable'.

Now, Sir, coming to the other amendments and the pointraised by the speakers
in their speeches in moving thoseamendments, I find that there are just a few
points whichcall for a reply.

With regard to the general attack on article 13 whichhas centred on the
sub-clauses to clause (1), I think I maysay that the House now will be in a

position to feel that the article with the amendmentsintroduced therein has
emerged in a form which is generallysatisfactory. My explanation as to the
importance of article8, my amendment to the phrase "existing laws"
and theintroduction of the word "reasonable" remove, in myjudgment,
the faults which were pointed out by honourablemembers when they spoke on this
article, and I think thespeeches made by my friends, Professor Shibban Lal
Saksenaand Mr. T. T. Krishnamachari and Mr. Algu Rai Shastri, willconvince the
House that the article as it now stands with the amendments should find no
difficulty in being acceptedand therefore I do not want to add anything to
what myfriends have said in support of this article. In fact I
findconsiderable difficulty to improve upon the arguments usedin their
speeches in support of this article.

I will therefore take up the other points. Most of themhave also been dealt
with by my friend, Mr. AnanthasayanamAyyangar and if, Sir, you had not called
upon me, I wouldhave said that his speech may be taken as my speech, becausehe
has dealt with all the points which I have noted down.

Now, the only point which I had noted down to which Ihad thought of making
some reference in the course of myreply was the point made by my friend,
Professor K. T. Shah,that the fundamental rights do not speak of the freedom
of the press. The reply given by my friend, Mr. AnanthasayanamAyyangar, in my
judgment is a complete reply. The press ismerely another way of stating an
individual or a citizen.The press has no special rights which are not to be
given orwhich are not to be exercised by the citizen in his individual
capacity. The editor of a press or the managerare all citizens and therefore
when they choose to write innewspapers, they are merely exercis ing their
right ofexpression, and in my judgment therefore no special mentionis
necessary of the freedom of the press at all.

Now, with regard to the question of bearing arms aboutwhich my friend Mr.
Kamath was so terribly excited, I thinkthe position that we have taken is very
clear. It is quitetrue and everyone knows that the Congress Party had
beenagitating that there should be right to bear arms. Nobodycan deny that.
That is history. At the same time I think theHouse

should not forget the fact that the circumstances whensuch resolutions were
passed by the Congress no longer exist.

Shri H. V. Kamath: A very handy argument The Honourable Dr. B. R. Ambedkar: It
is because theBrit ish Government had refused to allow Indians to beararms,
not on the ground of peace and order, but on theground that a subject people
should not have the right to bear arms against an alien government so that
they couldorganise themselves to overthrow the Government, andconsequently the
basic considerations on which theseresolutions were passed in my judgment have
vanished. Underthe present circumstances, I personally myself cannotconceive
how it would be possible for the State to carry onits administration if every
individual had the right to gointo the market and purchase all sorts of
instruments of attack without any let or hindrance from the State.

Shri H. V. Kamath: On a point of clarification, Sir,the proviso is there
restricting that right.

The Honourable Dr. B. R. Ambedkar: The proviso doeswhat? What does the proviso
say? What the proviso can do isto regulate, and the term `regulation' has been
judiciallyinterpreted as prescribing the conditions, but the conditions can
never be such as to completely abrogate the right of the citizen to bear arms.
Therefore regulation by itself will not prevent a citizen who wants to have
theright to bear arms from having them. I question very much the policy of
giving all citizens indiscirminately any such fundamental right. For
instance,if Mr. Kamath's proposition was accepted, that every citizenshould
have the fundamental right to bear arms, it would beopen for thousands and
thousands of citizens who are todaydescribed as criminal tribes to bear arms.
It would be opento all sorts of people who are habitual criminals to claimthe
right to possess arms. You cannot say that under theproviso a man shall not be
entitled to bear arms because hebelongs to a particular class.

Shri H. V. Kamath: If Dr. Ambedkar understands theproviso fully and clearly,
he will see that such will not bethe effect of my amendment.

The Honourable Dr. B. R. Ambedkar: I cannot yield now.I have not got much time
left. I am explaining the positionthat has been taken by the Drafting
Committee. The point isthat it is not possible to allow this indiscriminate
right.On the other hand my submission is that so far as bearing ofarms is
concerned, what we ought to insist upon is not theright of an individual to
bear arms but his duty to beararms. (An Honourable Member: Hear, hear.) In
fact, what weought to secure is that when an emergency arises, when thereis a
war, when there is insurrection, when the stability andsecurity of the State
is endangered, the State shall beentitled to call upon every citizen to bear
arms in defenceof the State. That is the proposition that we ought toinitiate
and that position we have completely safeguarded bythe proviso to article 17.

Shri H. V. Kamath: (rose to interrupt).

Mr. Vice-President: You do not interrupt, Mr. Kamath.You cannot say that I
have not given you sufficient atitude.

The Honourable Dr. B. R. Ambedkar: Coming to thequestion of saving personal
law, I think this matter wasvery completely and very sufficiently discussed
and debatedat the time when we discussed one of the DirectivePrinciples of
this Constitution which enjoins the State toseek or to strive to bring about a
uniform civil code and I do not think it is necessary to make any further
referenceto it, but I should like to say this that, if such a savingclause was
introduced into the Constitution, it woulddisable the legislatures in India
from enacting any socialmeasure whatsoever. The religious conceptions in
thiscountry are so vast that they cover every aspect of life,from birth to
death. There is nothing which is not religionand if personal law is to be
saved, I am sure about it that in social matters we will come to a standstill.
I do notthink it is possible to accept a position of that sort.There is
nothing extraordinary in saying that we ought tostrive hereafter to limit the

definition of religion in sucha manner that we shall not extend beyond beliefs
and suchrituals as may be connected with ceremonials which areessentially
religious. It is not necessary that the sort oflaws, for instance, laws
relating to tenancy or lawsrelating to succession, should be governed by
religion. InEurope there is Christianity, but Chistianity does not meanthat
the Christians all over the world or in any part ofEurope where they live,
shall have a uniform system of lawof inheritance. No such thing exists. I
personally do notunderstand why religion should be given this vast,
expansivejurisdiction so as to cover the whole of life and to preventthe
legislature from encroaching upon that field. After all,what are we having
this liberty for? We are having thisliberty in order to reform our social
system, which is sofull of inequities, so full of inequalities,
discriminationsand other things, which conflict with our fundamental rights.
It is, therefore, quite impossible for anybody toconceive that the personal
law shall be excluded from thejurisdiction of the State. Having said that, I
should alsolike to point out that all that the State is claiming in this
matter is a power to legislate. There is no obligationupon the State to do
away with personal laws. It is onlygiving a power. Therefore, no one need be
apprehensive of the fact that if the State has the power, the State
willimmediately proceed to execute or enforce that power in amanner that may
be found to be objectionable by the Muslimsor by the Christians or by any
other community in India.

We must all remember--including Members of the Muslimcommunity who have spoken
on this subject, though one canappreciate their feelings very well--that
sovereignty isalways limited, no matter even if you assert that it
isunlimited, because sovereignty in the exercise of that powermust reconcile
itself to the sentiments of differentcommunities. No Government can exercise
its power in such amanner as to provoke the Muslim community to rise
inrebellion. I think it would be a mad Government if it didso. But that is a
matter which relates to the exercise of the power and not to the power itself.

Now, Sir, my friend, Mr. Jaipal Singh asked me certainquestions about the
Adibasis. I thought that was a questionwhich could have been very properly
raised when we werediscussing the Fifth and the Sixth Schedules, but as he
hasraised them and as he has asked me particularly to give himsome explanation
of the difficulties that he had found, I amdealing with the matter at this
stage. The House willrealize what is the position we have laid down in the
Draft Constitution with regard to the Adibasis. We have twocategories of
areas,--scheduled areas and tribal areas. Thetribal areas are areas which
relate only to the province ofAssam, while the scheduled areas are areas which
arescattered in provinces other than Assam. They are really adifferent name
for what we used in the Government of IndiaAct as `partially excluded areas'.
There is nothing beyondthat. Now the scheduled tribes live in both, that is,
in thescheduled areas as well as in the tribal areas and thedifference between
the position of the scheduled tribes inscheduled areas and scheduled tribes in
tribal areas isthis: In the case of the scheduled tribes in the
scheduledareas, they are governed by the provisions contained inparagraph V of
the Fifth Schedule. According to thatSchedule, the ordinary law passed by
Parliament or by thelocal Legislature applies automatically unless the
Governordeclares that that law or part of that law shall not apply.In the case
of the scheduled tribes in tribal areas, theposition is a little different.
There the law made byParliament or the law made by the local legislature of
Assamshall not apply unless the Governor extends that law to thetribal area.
In the one case it applies unless excluded andin the other case, it does not
apply unless extended. That is the position.

Now, coming to the question of the scheduled tribes andas to why I substituted
the word "scheduled" for the word"aboriginal",

the explanation is this. As I said, the word"scheduled tribe" has a
fixed meaning, because it enumeratesthe tribes, as you will see in the two
Schedules. Well, theword "Adibasi" is really a general term which
has nospecific legal de jure connotation, something like theUntouchables. It
is a general term. Anybody may includeanybody in the term `untouchable'. It
has no definite legalconnotation. That is why in the Government of India Act
of1935, it was felt necessary to give the word `untouchable'some legal
connotation and the only way it was foundfeasible to do it was to enumerate
the communities which indifferent parts and in different parts and in
differentareas were regarded by the local people as satisfying thetest of
untouchability. The same question may arise withregard to Adibasis. Who are
the Adibasis. Who are theAdibasis? And the question will be relevant, because
by thisConstitution, we are conferring certain privileges, certainrights on
these Adibasis. In order that, if the matter wastaken to a court of law there
should be a precise definitionas to who are these Adibasis, it was decided to
invent, soto say, another category or another term to be called`Scheduled
tribes' and to enumerate the Adibasis under that head. Now I think my friend,
Mr. Jaipal singh, if he were to take the several communities which are now
generallydescribed as Adibasis and compare the communities which arelisted
under the head of scheduled tribes, he will find thatthere is hardly a case
where a community which is generallyrecognised as Adibasis is not included in
the Schedule. I think, here and there, a mistake might have occurred and
acommunity which is not an Adibasi community may have beenincluded. It may be
that a community which is really an Adibasi community has not been included,
but if there is acase where a community which has hitherto been treated as
anAdibasi Community is not included in the list of scheduled tribes, we have
added, as may be seen in the draft Constitution, an amendment whereby it will
be permissiblefor the local government by notification to add any particular
community to the list of scheduled tribes whichhave not been so far included.
I think that ought to satisfymy friend, Mr. Jaipal Singh.

He asked me another question and it was this. Supposinga member of a scheduled
tribe living in a scheduled area ora member of a scheduled tribe living in a
tribal areamigrates to another part of the territory of India, which isoutside
both the scheduled area and the tribal area, will hebe able to claim from the
local government, within whosejurisdiction he may be residing, the same
privileges whichhe would be entitled to when he is residing within
thescheduled area or within the tribal area? It is a difficultquestion for me
to answer. If that matter is agitated inquarters where a decision on a matter
like this would lie,we would certainly be able to give some answer to
thequestion in the form of some clause in this Constitution.But, so far as the
present Constitution stands, a member ofa scheduled tribe going outside the
scheduled area wouldcertainly not be entitled to carry with him the
privilegesthat he is entitled to when he is residing in a scheduledarea or a
tribal area. So far as I can see, it will bepractically impossible to enforce
the provisions that applyto tribal areas or scheduled areas, in areas other
thanthose which are covered by them.

Sir, I hope I have met all the points that were raisedby the various speakers
when they spoke upon the amendmentsto this clause, and I believe that my
explanation will givethem satisfaction that all their points have been met.
Ihope that the article as amended will be accepted by theHouse.

Mr. Vice-President: I shall now put the amendmentswhich have been moved, which
number thirty, to the vote oneby one. Amendment No. 412.

The question is:

"That for article 13, the following be substituted:--

"12. Subject to public order or morality the citizensare guaranteed--

(a) freedom of speech and expression;

(b) freedom of the press;

(c) freedom to form

association or unions;

(d) freedom to assemble peaceably and withoutarms;

(e) secrecy of postal, telegraphic and telephoniccommunications.

13-A. All citizens of the Republic shall enjoy freedomof movement throughout
the whole of the Republic. Everycitizen shall have the right to soiourn and
settle in anyplace he pleases. Restrictions may, however, be imposed byor
under a Federal law for the protection of aboriginaltribes and backward
classes and the preservation of publicsafety and peace."

"That for amendment No. 438* of the List of amendments,the following be
substituted :--

"That after sub-clause (g) of clause (1) of article 13,the following new
sub-clause be added:-

"(h) to keep and bear arms;"

and the following new clause be added after clause (6):--

"(7) Nothing in sub-clause (h) of the said clause shallaffect the
operation of any existing law, or prevent theState from making any law,
imposing, in the interests ofpublic order, peace and tranquallity,
restrictions on theexercise of the right conferred by the said
sub-clause."

The amendment was negatived.

Mr. Vice-President: Amendment No. 440.

The question is:

"That after sub-clause (g) of clause (1) of article 13,the following new
sub-clause be added:--

(h) to follow the personal law of the group orcommunity to which he belongs or
professes to belong.

(i) to personal liberty and to be tried by a competentcourt of law in case
such liberty is curtailed."

The amendment was negatived.

Mr. Vice-President: Amendment No. 502.

The question is;

"That after clause (6) of article 13, the following newclauses be added:-

"(7) Nothing in clauses (2) to (6) of this articleshall affect the right
guaranteed under sub-clause (h) ofclause (1) of this article.

"(9) No existing law shall operate after thecommencement of the
Constitution so far as the same affectsadversely the right guaranteed under
sub-clause (i) ofclause (1) of this article and no law shall be passed by
theParliament or any State which may adversely affect the rightguaranteed
under sub-clause (i) of clause (1) of this article ."

The amendment was negatived.

Mr. Vice-President: Amendment No. 445. I shall explainone thing. Honourable
Members will note that I am callingout the amendments in the order in which
they were moved.That is why the numbers are not consecutive. Amendment No.445.

*"That after sub-clause (g) of clause (1) of article13, the following new
sub-clause be added:--

(h) to keep and bear arms in accordance withregulations or reservations made
by or under Union Law."

The question is:

"That the following new clause be added after clause(1) of article 13:--

"Liberty of the person is guaranteed. No person shallbe deprived of his
life, nor be arrested or detained incustody, or imprisoned, except according
to due process oflaw, nor shall any person be denied equality before the lawor
equal protection of the laws within the territory ofIndia."

The amendment was negatived.

Mr. Vice-President: Amendment No. 447.

The question is:

"That clauses (2) to (6) of article 13 be deleted and the following
proviso be added to clause (1):--

"Provided, however, that no citizens in the exercise of the said right,
shall endanger the security of the State,promote ill-will between the
communities or do anything todisturb peace and tranquaillity in the
country."

"(2) Nothing in sub-clause (a) of clause (1) of thisarticle shall affect
the operation of any existing law in sofar as it relates to, or prevent the
State from making anylaw relating or libel, slander, defamation or any
matterwhich offends against decency or morality or whichundermines the
security of, or tends to overthrow, theState."

The motion was adopted.

Mr. Vice-President: Amendment No. 449.

The question is:

"That after clause (1) of article 13, the following newclause be
inserted:--

"(1-A) Nothing in sub-clause (a) shall affect theoperation of any
existing law or prevent any State frommaking any law relating to sedition or
conspiracy.

The amendment was negatived.

Mr. Vice-President: Amendment No. 450.

The question is:

"That clauses (2), (3), (4), (5) and (6) of article 13be deleted."

The amendment was negatived.

Mr. Vice-President: The second alternative in amendmentNo. 451.

The question is:

"That the following words be inserted at the beginningof clauses (2),
(3), (4), (5) and (6) of article 13:--

"Without prejudice and subject to the provisions ofarticle 8."

The amendment was negatived.

Mr. Vice-President: Amendment No. 452.

The question is:

"That clauses (2), (3), (4), (5) and (6) of article 13be delted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 458.

The question is:

"That in clause (2) of article 13, after the word"sedition" the
words "communal passion" be inserted."

(ii) in clause (6) of article 13, after the words "inparticular" the
words "nothing in the said clause shallaffect the operation of any
existing law in so far as itprescribes or empowers any author ity to
prescribe, orprevent the State from making any law, be insrted."

The motion was adopted.

Mr. Vice-President:

The question is:

"That in clauses (3), (4), (5) and (6) of article 13,before the word
"restrictions" the word "reasonable" be inserted."

The amendment was adopted.

Mr. Vice-President: Amendment No. 485.

The question is:

"That in clause (5) of article 13, the word "affect theoperation of
any existing law, or" be deleted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 467.

The question is:

"(1) That in clause (3) of article 13, after the
word"restrictions" the words "for a defined period" be
added."

I think the `Ayes' have it.

But before I declare the result finally I must pointout that there is some
kind of misunderstanding. Let me readthe amendment. It was moved by Mr.
Syamanandan Sahaya:

"That in clause (3) of article 13, after the word"restrictions"
the words "for a defined period" be added."

*"That in clauses (2), (3), (4), (5) and (6) of article13, the words
"affect the operation of any existing law, or"be deleted."

I definitely remember that several people spoke against it.I am going to put
the amendment once again. Amendment No.467.

The question is:

"(1) That in clause (3) of article 13, after the
word"restrictions" the words "for a defined period" be
added."

The amendment was negatived.

Mr. Vice-President: I trust that in future, honourableMembers will take more
care before they give their verdict.

Mr. Vice-President: I put amendment No. 474 to vote.

The question is;

"That in clauses (4) of article 13 after the word"restrictions"
the words "for a defined period" be added."

The amendment was negatived.

Mr. Vice-President: Amendment No. 476.

The question is:

"That in clause (4) of article 13, for the words " thegeneral
public" the words "public order or morality" be substituted.'

The amendmeant was adopted.

Mr. Vice-President: Amendment No. 483.

The question is;

"That in clause (5) of article 13, after the words"existing
law" the word "which is not repugnant to thespirit of the provisions
of article 8" be inserted."

The amendment was negatived.

Mr. Vice-President: I put No. 485 (second part), tovote.

The question is:

"That in clause (5) of article 13, for the word "State"the word
"Parliament" be substituted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 489.

The question is:

"That in clause (5) of article 13, the word `either'and the words `or for
the protection of the interests of anyaboriginal tribe' be omitted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 491.

The question is:

"That in clause (5) of article 13, for the word"aboriginal" the
word "Scheduled" be substituted."

The amendment was adopted.

Mr. Vice-President: Amendment No. 497.

The question is:

"That in clause (6) of article 13, for the words`morality or health"
the words "the general public" be substituted."

The amendment was adopted.

Mr. Vice-President: I put amendment No. 500 to vote.

The question is:

"That after clause (6) of article 13, the following newclause be added:

`(7) The occupation of beggary in any form or shape forperson having sound
physique and perfect health whethermajor or minor is totally banned and any
such practice shallbe punishable in accordance with law.'"

The amendment was negatived.

Mr. Vice-President: The question is:

"That article 13 in the form in which it emerges afterthe different
amendments which have been passed here standpart of the Constitution."

Article 13, as amended, was adopted.

Article 13, as amended, was added to the Constitution.

Article 14

Mr. Vice-President: We come to new article 14.

(Amendment No. 504

was not moved.)

Shri H. V. Kamath: What about 13-A? That is, amendments89, 90 and 92 of List
V.

Mr. Vice-President: That has been held over. I wasreferring to No. 504.

Now the motion is:

"That article 14 form part of the Constitution."

Honourable Members have been supplied with a list whichindicates the manner in
which I propose to conduct theproceedings of the House. No. 505 has been
disallowed asbeing verbal. 506 may be moved.

Pandit Thakur Dass Bhargava: May I take the liberty ofpointing out that my
amendment (No. 505) is not mercyverbal? It is an amendment of substance also.

Mr. Vice-President: Then I will give my rulling lateron. Mr. Naziruddin Ahmad
will carry on his work.

"That in clause (1) of article 14, after the words"greater
than", the words "or of a kind other than' be inserted."

Sir, clause (1) provides-I am reading only the materialpart--

"No person shall be subjected to a penalty greater thanthat which might
have been in flicted under the law at thetime of the commission of the
offence."

It guards against any punishment `greater than' is provideto be inflicted upon
a person. I have attempted to insertafter the words `greater than' the words
`or other than'that which might have been inflicted. There are many caseswhere
a punishment of fine only is provided. Suppose a manis fined one lakh of
rupees. An Appellate Court may turn itto an imprisonment during the sitting of
the Court. Thatwill violate the provision that where fine alone is
providedfor, an imprisonment may be substituted on the ground thatit is not
greater than' that. My amendment seeks to limitthe powers of Courts to inflict
punishment not only as to the extent but also to the kind. There are different
kindsof punishments--fine, imprisonment, whipping, forfeiture andhanging and
the like where only a particular kind ofpunishment is specifically provided,
you should not awardany punishment other than that. That is in short the
effectof this amendment. Where whipping alone is provided. Youcannot award a
fine. Where fine alone is provided, youcannot award imprisonment or whipping
or forfeiture. Whereforfeirture of moveables only a provided, you cannot
forfeitimmovables. Where forfeiture of articles relating to which

crime has been committed is provided, you cannot forfeito ther kinds of
things. So if we leave the powers of thecourts as in the clause it gives the
Court the power to giveany punishment not sanctioned by law. If clause (1) is
to beretained, the Court should also be limited to the class ofpunishment
provided. To me it seems that there is here alacuna-rather oversight which
should be corrected.

Mr. Vice-President: As regards amendment No. 505, I canallow the Member to
move the second part of it. PanditThakur Dass Bhargava.

Pandit Thakur Das Bhargava: Sir, I beg to move.

"That in clause (1) of article 14, for the words `underthe law at the
time of the commission' the words `under thelaw in force at the time of the
commission' be substituted."

Sir, if you kindly examine the definition of the expression`law in force' as
given in the explanation under article307, it would appear that the words `the
law' and the words`the law in force' have different meanings. Moreover as the
words in the previous part of the article also appear as`law in force', it is
very necessary and proper in thisjuxtaposition that the amendment that I have
suggestedshould be accepted. That is all I have to submit.

Mr. Vice-President: Amendment Nos. 507, 508 and 511 areof the same import. The
most comprehensive one, i.e, No.507, may be moved.

(Amendments Nos. 507, 508 and 511 were not moved.)

Amendments Nos. 509 and 510 are of similar import andmay be moved together.
They are in the name of Mr.Naziruddin Ahmad.

Mr. Naziruddin Ahmad: Sir, I beg to move:

"That at the end of clause (2) of article 14, the words`otherwise than as
permitted by the Code of CriminalProcedure, 1898" be added."

Sir, I am moving these amendments with

considerbaleanxiety in my mind. The first anxiety is that I may
perhapsoverstep my time limit; they second anxiety is that thereare a large
number of observant and powerful eyes directedagainst me and I am afraid that
a point of order may betaken at any time; and the third anxiety is the huge
`No'against me will be echoed by honourable Members and thiswill reverberate
as thunder clap under which my feeble `Aye'will be lost.

Then the other difficulty is that I have to crave theindulgent attention of
the Honourable the Chairman of theDrafting Committee to the point I am rais
ing. I shallrestrict my point strictly to the limits of relevancy.

Sir, the words which I seek to insert deals with animportant principle of
criminal procedure. Clause (2) whichI seek to amend runs as follows:

"(2) No person shall be punished for the same offencemore than
once."

A very sacred sentiment has prompted the introductionof this clause; but
considered from the point of view ofcriminal law, it has its loop-holes.

Clause (2) seems to be rather sweeping. There are caseswhere a man may be
legally punishment twice for the sameoffence, and I shall submit the
circumstances, with therelevant laws. Sir, the principal which deals with
thissubject finds a place in section 403, sub-section (1) of theCode of
Criminal Procedure. The point of this. The law ofpunishment twice has been
enacted.

Shri T. T. Krishnamachari: Sir, on a point of order.Can any Member of this
House move an amendment referring toan enactment made by a legislature
subordinate to this House? I am afraid the amendment itself is out of order.

Mr. Naziruddin Ahmad: Anything else may be out oforder, but not the amendment.
We have already referred toand saved `existing laws'--enactments of
subordinatelegislatures in article 9 and in other places. I was onlyreferring
for handy consideration to the Criminal ProcedureCode. I cannot pretend to
submit that Section 403, or anyprinciple embodied in it, or any sound
principle even isbinding upon this House, not even the soundest
ofpropositions, because this is a sovereign House.

I was submitting for consideration certain principlesof the Criminal
Procedure, not that I suggested at all thatthey will be binding on this House,
but only that theyworthy of consideration.

Sir, it often happens--I shall submit examples fromgeneral principles because
I think they would be moreacceptable to Mr. Krishnamachari--it often happens
that aman is punished by a Court which has no jurisdiction; It isa very
ordinary experience in criminal Courts that the Judgeon appeal or the High
Court or the Privy Council--and nowthe Federal Court and later on the future
Supreme Court--mayand does find that the conviction is without
jurisdiction.Meantime, the man has been convicted. If you say that hecannot be
convicted twice, then orders of re-trial byappellate and revisional Courts
would be absolutely out of the question. If a man is tried by a Magistrate or
a Courthaving no jursdiction, and if he is punished, that is thefirst
punishment.

And then if it is found that the Court had nojurisdication to try the case,
what is often done is thatthere is a re-trial. But if you enact the principle
ofclause (2) that a man shall not be punished for the sameoffence more than
once, the effect would be that if a man ispunished by a Court of competent
jurisdiction but there is alacuna in the trial, or by a Court of competent
jurisdictionthe result will be to shut out any further trial at all. Are-trial
after a conviction is an ordinary incident of dailyexperience in criminal
Courts.

Sometimes, Sir,............

(After a pause)

Sir, I desire to monopolise the attention of theHonourable Member the Chairman
of the Drafting Committee;otherwise it will be useless to argue. If he says
"No", thewhole House will echo him.

Mr. Vice-President: Dr. Ambedkar, Mr. Naziruddindemands your wholehearted
attention. He says that if you say"No", the House will say
"No". (Laughter).

Mr. Naziruddin Ahmad: The point which I was submittingis a point of general
importance. The

point is that if a manis convicted by a court of law--that is the
firstconviction--it may be that there is some lacuna in the trial. The accused
appeals to the Court of Sessions. TheCourt finds that there was a lacuna in
the trial or that theCourt had no jurisdiction. But it may order a
re-trial.Clause (2) which would effectively prevent further trialbecause it
may involve a second conviction. There may be afirst conviction of an offender
in the hands of a Court, and this clause will effectively prevent a re-trial
order by asuperior court. This is one of the simplest examples. Theprinciple
should be not merely convicted, but the principleshould be that a man cannot
be tried again, tried twice, ifhe is acquitted or convicted by a Court of
competent jurisdiction, while the conviction or acquittal standseffective. In
fact, it is not the first conviction that isimportant; it is the ultimate
legality and finality of theconviction that has to be respeted; the finality
shouldattach not only to conviction but also to acquittal. Whatare you going
to do with regard to a person who is finallyacquitted after a fair trial, and
when the acquittal is not set aside and istherefore final and binding? You say
nothing about that. Yousimply say that a man should not be convicted twice for
thesame offence. A man acquitted shall also not be liable to betried again.
You say nothing about that but confine youattention to the bogey of double
punishment. I submit thatthe so-called theory of double punishment is not all
anddoes not give a complete picture. Take for example, a manfined Rs. 50 for
an offence by a Magistrate having nojursdiction; then he appeals to an
appellate Court. Theappllate Court will, by virtue of clause (2) be
precludedfrom sending it for re-trial on any technical ground, evenon the
ground that the Court had no jursdiction.

The relevant section which caused some amount ofsuspicion in the mind of a
distinguished Member of theHouse, Mr. T. T. Krishnamachari, I shall with his
permissionand with your permission, Sir, and with the permission of the House,
read. Not that it is binding, but it is acrystallised wisdom which has been
handed down to us fromgeneration to generation. Sub-section (1) of section
403says:

"A person who has been once tried by a Court ofcompetent jurisdiction for
an offence and convicted oracquitted of such offence, shall, while such
conviction oracquittal remains in force, not be liable to be tried againfor
the same offence".

I think, Sir, this is the proper form. It may be arguedthat the Criminal
Procedure Code is a sufficient safeguardagainst injustice, but if you
introduce it here it is ajusticiable right, and we have already provided that
anyviolation of any fundamental right is justiciable and wouldnullify all
existing laws contrary, and therefore it will have the effect of abolishing or
rather nullifying thewholesome law as laid down in sub-section (1) of
section403. I submit that the clause has got to be very carefullyconsidered
and, if necessary, should be re-drafted.

I submit that double punishment for the same offence insuch cases does not in
fact work injustice. What happens insuch cases is that the punishment already
suffered orinflicted is taken into account or adjusted in giving thefinal
punishment in a re-trial. That is the effect of this amendment.

Mr. Vice-President: Do you intend to move amendment No.509?

Mr. Naziruddin Ahmad: No, Sir. It deals with the sameprinciple and I do not
wish to move it.

Mr. Vice-President: I have found from the last twodays' experience that 9.30
A.M. is too early an hour formany Members of the House. They seem to think
that otherswill come at the proper time and they need not come, with the
result that there is difficulty in starting our work atthe proper time. I have
therefore decided that from tomorrowwe shall start at 10 A.M. and break up at
1.30 P.M.

The Assembly then adjourned till Ten of the Clock onFriday the 3rd December,
1948.